Robert Knight

In the latest court ruling upholding Obamacare, a three-judge federal panel in Richmond, Virginia, rejected Liberty University’s challenge to provide health insurance to both the individual mandate and the employer mandate. There are silver linings here, and we’ll get to them in a minute. But first, let’s look at the case.

Eyebrows were raised a few months ago when the Justice Department said it had no problem with the U.S. Supreme Court sending Liberty’s challenge to Obamacare back to the U.S. Fourth Circuit, which had declined to rule on the merits of the case, citing a lack of jurisdiction.

Two of the three judges on the panel were appointed by Barack Obama, and the other by Bill Clinton. If the federal judiciary wasn’t so politicized, making up laws as they go along, this would not be an issue. But I think it’s worth mentioning.

The 62-page ruling, among other things, says the employer mandate is justified under taxing power and also under the Commerce Clause. That’s the clause in the 1942 Supreme Court ruling in Wickard v. Filburn that the feds cite to intervene if you grow wheat on your own land to feed your animals. If that’s interstate commerce (because the wheat was withheld from possible interstate sales), then forcing you to buy health insurance that you don’t want doesn’t seem like a stretch for courts accustomed to expanding federal power.

However, in FNIB v. Sibelius (2012), in which Bush appointee Chief Justice John Roberts wrote the majority opinion upholding Obamacare under Congress’s taxing power, Roberts and the rest of the majority agreed that neither the Commerce Clause nor the Necessary and Proper Clause could be used to validate the individual mandate. Roberts wrote that the Commerce Clause “authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.” A joint dissent, meanwhile, written by Antonin Scalia, warned darkly that such misuse of the clause could “enable the Federal Government to regulate all private conduct” and “make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”

That is exactly why big government liberals want so badly for the courts to adopt the expansive Wickard v. Filburn view of the Commerce Clause, which the Fourth Circuit panel did in spades. Literally hundreds of liberal groups and individuals, including many members of Congress, filed briefs opposing Liberty. On the other side of this Goliath v. David showdown, 19 pro-family and conservative organizations, including the American Civil Rights Union, filed in support of Liberty.

Robert Knight

Robert Knight is an author, senior fellow for the American Civil Rights Union and a frequent contributor to Townhall.